Interfering in US foreign relations: Enforcement of the Logan Act

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

“The Logan Act was intended to prohibit United States citizens without authority from interfering in relations between the United States and foreign governments. There appear to have been no prosecutions under the act in its more than 200-year history. … Although attempts have been made to repeal the act, it remains law and at least a potential sanction which could be used against anyone who without authority interferes in the foreign relations of the United States.” Quoting from Conducting Foreign Relations Without Authority: The Logan Act (March 11, 2015 RL33265). That CRS report was written at a time when interest in the Logan Act had been renewed as the result of a letter signed by 47 U.S. Senators to Iran suggesting that negotiations about a nuclear deal between the President and the Iranian leadership would be an executive agreement that another President or Congress would be able to abrogate.

The Logan Act is a centuries-old law designed to bolster executive power. Yet Presidents have uniformly declined to don the statute’s vintage armor. Countless enforcement opportunities have yielded precisely zero prosecutions; the Act has ceased to function as law in any meaningful sense. A recent resurgence in Take Care Clause scholarship has overlooked this unparalleled passivity. Scholars agree that although Presidents may not refuse to enforce statutes on policy grounds, exercising prosecutorial discretion on a case-by-case basis is perfectly permissible. The Logan Act’s slow demise offers an important caveat: that laws can be nullified through the repeated use of individualized enforcement discretion. I call this previously unexplored phenomenon “nonenforcement by accretion.”

This Article contends that the gradual erasure of an entire statute presents a far greater threat to legislative policymaking supremacy than does the advance signaling of cabined enforcement priorities. I highlight the problem’s magnitude by chronicling Presidents’ refusal to remedy even archetypal Logan Act violations in the face of deafening enforcement demands. I then identify several forces driving the statute’s deterioration. The Article also shows that incremental nonenforcement cannot be easily analyzed under conventional Take Care Clause tests. In doing so, it unsettles the traditional distinction between policy-based nonenforcement and that anchored in constitutional objections. Finally, the piece argues that failing to enforce the Logan Act — a law that modern majorities would never enact — has in fact thwarted long-term democratic responsiveness.

Disclaimer

Just in case you don't get it: The views expressed are solely those of the blog post author and should not be attributed to anyone else, meaning they do not necessarily represent the views of any organization that the post author is affiliated with or with the views of any other author who publishes on this blog.